Constitution, and may have sprung from Brennan’s Roman Catholic faith.
William O. Douglas was the court’s most liberal justice—“the most doctrinaire and committed civil libertarian ever to sit on the court,”
Time
magazine wrote in 1975—but he was not willing to go as far as Brennan and Marshall. In his view, it wasthe arbitrary and capricious manner in which the death penalty was being carried out by the states that rendered it unconstitutional. “One searches our chronicles in vain for the execution of any member of the affluent strata of our society,” Douglas wrote. Justice Douglas noted the race, background, and mental faculties of Furman, Branch, and Jackson and, more broadly, that a disproportionate number of blacks, poor, young, and uneducated people, were sent to their deaths.
Justice Potter Stewart saw other evidence of the arbitrary nature of the administration of the death penalty: for the same crime, one person might be executed while ten others were sentenced to life in prison. In an opinion only ten paragraphs long, Stewart said that a death sentence was cruel and unusual “in the same way that being struck by lightning is cruel and unusual.”
Among the dissenters was Justice Harry Blackmun. “I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty,” he began. “Were I a legislator,” he went on, “I would vote against the death penalty.” But he was a justice and this was a court, and he could find nothing in history or law or earlier court decisions to justify overturning the death penalty.
The court’s decision in
Furman
overturned the death penalty in the forty states where it could be applied and in the District of Columbia as well as for the federal government; across the country some six hundred death row inmates had their lives spared, more than half of them African American. Opponents of capital punishment rejoiced. Prematurely. While the court said the death penalty was unconstitutional as it was being administered, the justices (except for Brennan and Marshall) left open the possibility that capital punishment could be administered in ways that were constitutional.
Death penalty proponents went to work. In California, a ballot initiative to reinstate the death penalty, which was backed by Governor Ronald Reagan, was approved by nearly two to one. Within five months after
Furman
, the Florida legislature had enacted a new death penalty law, and other legislatures quickly followed. The new laws varied from state to state, but in generalthey limited the death penalty to aggravated murder, rape, and kidnapping; provided for bifurcated trials—first on the question of guilt or innocence, and if the defendant was found guilty, a second phase on the question of sentence—and placed requirements on judges and juries before they could impose it.
The Supreme Court spoke again in 1976, in
Gregg v. Georgia
and companion cases from Texas, Louisiana, North Carolina, and Florida. The new capital punishment laws were upheld. Eventually, when the pro–death penalty legislators and lawyers were finished, the capital punishment map looked a lot like it did pre-
Furman:
executions were permitted in thirty-eight states, primarily in the South and West, and by the federal government.
The first person executed after
Furman
and
Gregg
was Gary Gilmore, who killed a gas station attendant one day and a motel clerk the next. Gilmore, who had spent most of his life in prison or on the run, wanted to die; he did not want his lawyers to seek a stay from the Supreme Court. He was shot by a five-man firing squad in Utah in 1977. The case drew international attention, and Gilmore’s life was portrayed in a landmark book by Norman Mailer,
The Executioner’s Song
. The death penalty was back. What has become known as the modern era of the death penalty had begun.
THE PROSECUTOR
B EFORE J ONES COULD proceed to trial against Elmore, he had to seek an
William O. Douglas was the court’s most liberal justice—“the most doctrinaire and committed civil libertarian ever to sit on the court,”
Time
magazine wrote in 1975—but he was not willing to go as far as Brennan and Marshall. In his view, it wasthe arbitrary and capricious manner in which the death penalty was being carried out by the states that rendered it unconstitutional. “One searches our chronicles in vain for the execution of any member of the affluent strata of our society,” Douglas wrote. Justice Douglas noted the race, background, and mental faculties of Furman, Branch, and Jackson and, more broadly, that a disproportionate number of blacks, poor, young, and uneducated people, were sent to their deaths.
Justice Potter Stewart saw other evidence of the arbitrary nature of the administration of the death penalty: for the same crime, one person might be executed while ten others were sentenced to life in prison. In an opinion only ten paragraphs long, Stewart said that a death sentence was cruel and unusual “in the same way that being struck by lightning is cruel and unusual.”
Among the dissenters was Justice Harry Blackmun. “I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty,” he began. “Were I a legislator,” he went on, “I would vote against the death penalty.” But he was a justice and this was a court, and he could find nothing in history or law or earlier court decisions to justify overturning the death penalty.
The court’s decision in
Furman
overturned the death penalty in the forty states where it could be applied and in the District of Columbia as well as for the federal government; across the country some six hundred death row inmates had their lives spared, more than half of them African American. Opponents of capital punishment rejoiced. Prematurely. While the court said the death penalty was unconstitutional as it was being administered, the justices (except for Brennan and Marshall) left open the possibility that capital punishment could be administered in ways that were constitutional.
Death penalty proponents went to work. In California, a ballot initiative to reinstate the death penalty, which was backed by Governor Ronald Reagan, was approved by nearly two to one. Within five months after
Furman
, the Florida legislature had enacted a new death penalty law, and other legislatures quickly followed. The new laws varied from state to state, but in generalthey limited the death penalty to aggravated murder, rape, and kidnapping; provided for bifurcated trials—first on the question of guilt or innocence, and if the defendant was found guilty, a second phase on the question of sentence—and placed requirements on judges and juries before they could impose it.
The Supreme Court spoke again in 1976, in
Gregg v. Georgia
and companion cases from Texas, Louisiana, North Carolina, and Florida. The new capital punishment laws were upheld. Eventually, when the pro–death penalty legislators and lawyers were finished, the capital punishment map looked a lot like it did pre-
Furman:
executions were permitted in thirty-eight states, primarily in the South and West, and by the federal government.
The first person executed after
Furman
and
Gregg
was Gary Gilmore, who killed a gas station attendant one day and a motel clerk the next. Gilmore, who had spent most of his life in prison or on the run, wanted to die; he did not want his lawyers to seek a stay from the Supreme Court. He was shot by a five-man firing squad in Utah in 1977. The case drew international attention, and Gilmore’s life was portrayed in a landmark book by Norman Mailer,
The Executioner’s Song
. The death penalty was back. What has become known as the modern era of the death penalty had begun.
THE PROSECUTOR
B EFORE J ONES COULD proceed to trial against Elmore, he had to seek an
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